Systemat'io Classification in (or) legislation and (b) administration (understood in a sense opposed to legis lation and embracing all non-legisla
183
apprehended, receive protection uncon sciously (and one may say instinctively)
tive state activities).
through the forms and standards govem ing the affairs of private persons. The infringement of interests, such as
IV. The relation of the several parts of the law to each other in developed systems is variable. It is impossible to derive the proper scope of public law
in the present age are treated absolutely, in the law, as interests of the community, were, in earlier stages of civilization, sanctioned by the same means, and in
in the narrow sense (state law) as against
the same manner, as purely private
private law abstractly either from the nature of law itself or from the nature of the state. The same want of uni formity in the appropriate line of demar cation appears in actual systems as is shown in the theoretical view— the political science of legislation (Gesetz gebungspolitik, de lege ferenda). In ancient times, and in the Middle
Ages, there were a large variety of matters, which we now consider as be longing to public law, which were em braced by private law. In earlier times these matters only indicated individual
interests and not social interests. The adjustment of social conditions appeared more simple through standards of private law than of public law. Nevertheless,
interests.
Thus taxation, which in the
modern view belongs solely to the fiscal sovereignty of the state, was pro vided for in the German Middle Ages to a large extent by a contractually
derived legal arrangement, according to analogy of private law. The relations of feudal dependents received little regu lation by means of public law. Instead of legal interference by public law for the protection of public inter ests, there was allowed (as also in the Roman law) a system of private actions
by private persons. Accordingly, stead of the legal personality of community, the legal personality of head of the state was regarded
in the the as
the private legal owner of interests to
every state must recognize, and must
be protected by public law.
have recognized from the beginning, a large number of standards as belonging to public law.
munity in private law was not considered as a person, but, instead, the head of the
Constitutional law and military law, even though in the most primitive form, and universally, the rudiments, at least, of private law, as such, must have been
On the other hand, however, it is to be observed, in lower orders of civilization,‘
recognized by the state. But the residue of the law and its details present an extraordinary diversity of conception and practice. There is frequently a
lack of distinction between public and private law, and universally so in lower
stages of civilization. Interests of the community, which though imperfectly understood’ are yet present and vaguely IIn this connection the report of the German corvette captain. von Werner, of Dec. 19, 1878,
The com
state.
from the South Sea station. the harbor Makada of the Duke of York. is highly interesting: — "There was no other way to preserve German
influence in this region than the purchase of a har bor, as in the present low condition of civilization of this race the conclusion of an (international) agreement was out of the question. Their intelli genes is not yet equal to such an agreement." (See the oflicial memorial which was presented to the German Reichstag with the Samoan agreement of Jan. 29, 1879: No. 239, p. 153 of the proceedings of the Reichstag). ‘Cf. the above memorial (p. 157), according to which there did not exist among the South Sea Islanders any secure personal ownership. but only family, tribal or chieftain ownership. See sec. 20. infra, with regard to the development of private ownership. With reference to community or chief
